What is the test for producing an affidavit of documents?

Ontario, Canada


The following excerpt is from Sarta v. Mazo, 2021 ONSC 5660 (CanLII):

The principles I must consider on this motion are set out in Gamble v. Black & McDonald Limited, 2020 ONSC 811 (Master), at paras. 3-4. Parties are generally left to make the initial decision about what documents to produce themselves. Where there is evidence of missing documents, though, a motion for a further and better affidavit of documents is proper. There must be evidence that specific documents exist that have not been produced. Evidence that amounts to intuition, speculation and guesswork is insufficient. Also, simply identifying the existence of documents is not enough. The missing documents must meet the test of relevance under the Rules and must also satisfy the proportionality requirements of Rule 29.2.03. No arguments on proportionality were made on this motion.

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